Tuesday, August 28, 2012

Judge Raus defends controversial "bright future" rape case decision

"No doubt, (Afizal) committed an offense, but is a custodial sentence the only safeguard to ensure similar offenses of consensual sex among teenagers will not happen?"

Keeping young offenders out of prison. Court of Appeal president Raus Sharif got huge flak for keeping a national bowler out of jail for a statutory rape committed three years ago. Yesterday, in his written judgment, Raus said what the Court of Appeal had done was to keep a young offender out of jail as there were other means of dealing with "a mistake" committed by two teenagers: Nor Afizal Azizan, the bowler, was 19 at the time and his girlfriend was 13 years and 4 months.

"Both made a mistake in engaging in premarital sex. No doubt, the appellant (Afizal) committed a offense, but is custodial sentence the only safeguard to ensure similar offenses of consensual sex among teenagers will not happen?" Raus asked.

The teens had consensual sex: they checked into a hotel in Air Keroh, Melaka on June 5, 2009 to spend a night together. The girl's father lodged a police report against Nor Afizal after he "happened to read" the girl's diary about her "sexual encounter".

Raus said parents should impose religious knowledge on their kids and schools should teach sex education, especially the dire consequences of premarital sex.

Netizens enraged by the Court of Appeal's decision to set aside a High Court's decision to sentence Afizal to 5 years' jail had started a #brightfuturerapeOK hashtag to protest the decision. I realize that a great deal of the "rage" was ignited by the original news report, which gave the impression that the national bowler was getting off scot-free because the Court was of the view that he had a bright future! Take note that V. Anbalagan's report on Raus' judgment h e r e made no mention of anyone's "bright future".

49 comments:

charleskiwi
said...

Religious knowledge is not enough to teach a person to be righteous and well behaved in life of not only a muslim but all human beings of all religions, Just look around you the frauds, deceits, suicide bombings, corruptions and so on and so forth committed not only by men of all faiths but also by the muslims. You are not saying that all the muslims who committed the above mentioned atrocities are muslims who have not being given religious teachings ? Be real a person who commits a wrong doing is because of his or her upbringing , greed, or hatred just to name a few examples.Just name a religion that teaches its followers like those in Umno or editors of Utusan Melayu to behave or write the way they do ? Or is it these so called politicians and writers were not given religious teachings ? Or is it because they are innate greedy and innate trouble makers ?

the only unfortunate thing in this, is the daddy found out the girl's sexual encounter in her diary. cant blame the girl though, because girls write diary and for some reason i cant figure why they do that

if only daddy didnt peek into the diary.

i dont understand what judge raus wrote even though it is in english. is he asking whether this premarital sexual can be cured by putting young offenders into jail?

so can other 'young offenders doing their first mistake' escape jail or any other punishment. i dont know but raus judgement confirmed they can. bowler or not, yes they can. no no me saying that. raus's judgement said that. just make sure it is consensual.

as for the bowler, if i were the head coach, i would never pick him again. he is average, lets face it. and there are a lot more averages on the roaster. but this kid brings negative vibe to the team and potentially attract negative attentions. if the team fails, head coach has to answer not the kid. so i would rather select other average players with clean record.

this is for the team, kid. nothing personal. and just make sure your current girlfriend, write no diary and keep your thing together, between you guys.

She was only 13 years old baru baligh and that guy is 19 years old sudah lama baligh. Will he marry her sedangkan suka sama suka or seek for another dara? Is it fair to the father of the 13 years old and the girls who doesnt really know what is nuts for?

Totally agree.. what do anyone/anybody get by jailing the boy??-will it benefit the girl?- will it benefit the girl's parents?- what benefit will the boy gets by going to jail?Minta ampun kepada Allah and gets on with life for both offenders. AND parents you are not blameless either...

Dzulman of Shah Alam feels terribly sad that three eminent judges could make such a short sighted juidgement. As a layman if a person have sexual intercourse with a girl who is below the age of maturity (i.e. 15 years) he is automatically charged for rape.Rape is a very serious offence that currently seems to be happening quite rampantly. That judgement could be construed by future young rapist as a signal to go ahead with their favourite past time - raping young girls so long as the girls give their consent even though if they are underaged.What has happened to our judiciary?

'to keep a young offender out of jail as there were other means of dealing with "a mistake"' Are you kidding me? A rape is still a rape no matter which way you look at it. The sentence is just not even a slap on the wrist. It can't be deemed as consensual sex as the poor girl was just 13? What a 13-year-old girl possibly knew about consensual sex? she still a kid and under parental supervision. How could you ever considered the girl ignorance and naivety as her consent? Otherwise her father wouldn't make a police report considering his act will only prolong the matter, brought unwanted public attention and possibility face great humiliation as the case dragged on. Think about it. What kind of message the sentence will meant to the public at large. If the sentence is justified then why the uproar? and her partner happened to be 19, had passed 18 year threshold but yet an adult. He should have knew better because of the large age gap and knew better his act could destroyed the girl's future. Wouldn't ever occurred to you that she might have been lured or enticed into having sex with him? Have your ever heard about the case of famous director Roman Polanski? He was convicted of statutory rape of a 13 year old girl in 1978 and fled to Europe to escape arrest and incarceration from the US Justice.The judge that sat on his case already died but he would immediately be arrested should he set his foot on the US soil. That girl has since grown up and got married but the director is still on the run; a fugitive. Have you ever wonder why the US Justice Department still chase him? It shows how serious the crime he had committed.

Being a male, I was fully aware and concious of almost all my act and the consequences of my action, whn I was 18 or 19 i.e. just after form 5. I consider myself of average up-bringing not that of ostat type. But having sex with a girl of 13 i.e. just finished primary std 6, is pure taking advantage over the girl. The poor girls may not know what was happening, besides just the "feel good" factor. Can you call this consensual?

Statutory rape laws were instituted because minors are deemed NOT have the mental capacity or maturity to give consent to sex.

In this instance, the minor victim (a girl) was 13 years old at the time of the incident.

Malaysians, especially those married ones with children, do you think that at that stage of their lives, these inexperienced and under-exposed children can possibly fully understand the ramifications of all the dangers that could arise from "consensual sex"?

Our justices have erred, and erred seriously at that. Some of them should be sent back to law school, or better, sacked!

Rehabilitation? That's one reason we have prisons!

And why was this case heard in the civil court and not the srariah court?

The law is the law is the law.....Roman Polanski also had consensual sex with his even slightly older than 13 years old girlfriend, but still underage, and according the law it is a statutory rape and the law is there for a reason to protect and how can a 13 year old think like an adult.....no excuses.

what raus does not seem to grasp is that statutory rape, as opposed to rape in the orthodox sense, has got NOTHING to do with whether or not such rape was consennsual. In fact, if it was not consensual, the charge will be rape. Statutory rape law is intended to deal with consensual underage sex. I am very sure that the 13 year old girl had full intention and happily agreed to have sex but that is irrelevant because the law is simply to prohibit underage minors from having sex whether they like it or not. I feel stupid for having to give an analogy but it is akin to the laws prohibiting persons under 18 to smoke, to drink alcohol and to ENTER CONTRACTS!! Yes, they all intended to do smoke, drink and fully consented to contract, but the law renders such acts illegal/contracts void simply by virtue of their age. If you ALLOW statutory rape BECAUSE it was consensual, then just repeal all the other acts lah. Bangang tak ingat dunia punya bodo raus. What dumb ass law school did you graduate from? A first year can come up with better legal reasoning if this was given as an exam question. Embarassing.

Rocky.I agree with Rouse decision.This is not rape case.Rape mean using force .In this case the girl agree to make love and i think they are in love.After the girl father found out later then he lodge a police report.

Consensual sex is a mitigating factor under statutory rape charge, but it should go towards REDUCING jail time, rather than ABOLISHING jail time. Singapore shows no mercy for statutory rape cases, even when the "victim" was a prostitute who was out looking for money. This is equally wrong. We must show some degree of mercy, but must also send a strong message to society that consensual sex with a minor is still a serious offence.

First of all let's be clear. Raus didn't say there's no rape. It's a statutory rape. The boy pleaded guilty already. So stop spinning that the judge says there's no rape.The issue is of sentencing. Now in every case there's mitigation factor to determine sentencing. Here it was consensual, remorse for example. Now in criminal justice we need to see what's the best effective sentencing. You decide which value you think best serve. To me raus judgement seems reasonable.What is not reasonable are those who still try to impugned the court system. I've always said in court cases you should wait for the judgement. We must be fair to see how it's decided. To see basis of decision. I do believe if it's decided overseas say in England and Australia the judge will consider the mitigating circumstances. This is the international practice.As to don play puk insinuation it should be shariah, please read our law. He argues statutory rape. Statutory rape is a civil offence and not shariah. Criminal acts are under civil law. Please read our constitution. The boy can still be charged for other Islamic offences but the dad file criminal charges first. After all don't you think don play puk call for shariah offences are against human rights concept of double jeopardy. The boy has been tried for an offence and is found guilty with non custodial sentences. Why should anyone be tried twice? Don play puk certainly got his human rights subsume under PR propaganda.

Luring a 13 year old girl to hotel to have consensus sex is ok?. Did he tell the girl of his intention before they book into the hotel? Did the girl knew there are going to have sex or the boy have aroused the girl 'ringan ringan' so that she will feel like want somemore?Or is it due to Islam that state when a girl have first haid then they are already adult so it ok to get married or if in hudud law, she will have to be stoned to death for the consensual sex? It will be unlucky for the girl if PAS rule and lucky for the boy since there no 4 witness. My opinion the yoing girl will not agreed to have sex as she know nut unless the boy have made advance to her by arousing her, and that is a crime. Ask the girl if she know that by having sex she may be pregnent or they may have used condom? Did the girl knew about it, oh of course it openly sale at 7-11.Who to blame? Pity the father, he should have just force him to mary her daughter and will save him from this humilation of highest order. Now when people look at them, it will be ' your dauther is a cheap skate'? WHAT IS THE FUTURE OF THE YOUNG GIRL, that is the concern. Will Jabatan Agama Islam charged them on Khalwat? What was the hotel owner or the worker escape from beimng prosecuted since they allowed them to book into the hotel? OK that Malaysia. Now if this was not made public, no one will know casue now we knew there are many similar cases for the reason of bright future. If a 19 year old boy who represent Malaysia say he killed someone accidentatly, then will he too escape in such manner, for bright future? I am annoyed.

The whole idea for statutory rape laws is to protect minors. if this protection is gone , then it's open season on minors. I wonder where the Judges graduated from. Seesh even a 1st year law student can tell you that this judgement stinks .

WTF.... Now everybody can have sex with under age, no need to worried just give whatever the girl want(make sure don't force, the easy way just give some pill), same like what mat rempit are doing, win race then can have money and sex, wow.....

This debate leads to an interesting question. With many comments for and against, are the judges supposed to bow to social pressure? Or are they supposed to work 'without fear of favour' based on their understanding of the law? Should the courts be treated like Akademi Fantasia?

There is a positive side of this case and other high profile cases in contention for Malaysia as a whole, that is all the lawyer from the the Magic Circle, Global Quartet, White Shoe Firms, Seven Sisters or Big Five, to name a few will open branches in Malaysia or even make their headquarters here as these firm see in Malaysia it depend on your 'CREATIVITY' to have a favorable judgement. If you get my drift.

Those girls were still young and they dot even know what to do or how to protect themselves...anyway those girls lost something for those guys, not much damage to them at all!those girls will have ppl talking about them....I really hope whoever met these two guys anywhere out there do say "hey that's the guy who had sex with a minor and still enjoying his freedom which do not seem to feel guilty for what they have done to those girls".

Seeing this from the perspective of a foreigner, I find the judgement shocking. There is clearly bias from the judiciary. The shame is that the Law has failed to protect this and other you g girls from sexual predators. More worrying is the attitude that in certain circumstances statutory rape is an excusable offence

As a foreigner you should respect our laws. Our esteem ex PM the Indian Mahathir has made syariah laws that demand Malay girls bring 4 witness if they say they were raped. So expect the girls father and herself to be charged in syariah. As fot the teenage boy, he was duped by the lawyers.There is no way that the DPP can proved penile penetration if the sex act happened 1 year ago. Even with sperm DNA the court deem it unsafe to convict a sodomiser.

The girl was 13 and the bowler was 19? He should be punished for taking undue advantage upon so young a girl. Consent or no consent is irrelevant.... The bowler.... Should have known better not to commit such act.... Although maybe he chose rather to follow his desire.... But alas the girl was so young.... Foolish enough to have had consented to it but as the guy was clearly old enough to think... punishment is warranted and not to be taken lightly.... lest our daughters be withered away unnoticed tommorow.